Prospects for People with Learning Difficulties v Harris UKEAT/0612/ 11

Subjects: Suspension – Harassment – Health and Safety Obligations and Discrimination

C claimed that her suspension from work constituted victimisation, harassment and unfair dismissal. The ET dismissed the victimisation claim but upheld the claim that she had been unfairly dismissed and subjected to harassment. The Respondent appealed to the EAT.

Facts

C was employed as a support worker caring for adults with severe disabilities who were living in supported living accommodation.

C had arthrogyposis, which is a rare congenital musculoskeletal condition that affects joints and results in weakness and stiffness. As a result of her disability she was unable to perform CPR and in November 2009 the training course provider refused to grant a new certificate. R suspended C on full pay without any prior discussion on two occasions. C eventually returned to work in a supernumerary capacity but was dismissed as a result of the risks said to be involved in continuing to employ her. The ET held that the suspensions amounted to unlawful harassment. An employer who reasonably believes that it is necessary and makes it clear to the employee that the suspension is pending investigation would not normally be committing an act of harassment. In this case R knew that C could not perform CPR before it sent her on the course. It sent her on the course knowing that she could not pass it and had not conducted any proper consideration to the consequences of C's inability to perform CPR.

Held

The EAT upheld the Tribunal’s decision. The EAT considered that the ET was entitled to find that the suspension in this case was far removed from the generality of cases. The employer's failure to consider various aspects of C's position meant that the suspension was effectively unwarranted and unjustified. It had the result of creating a intimidating, hostile, degrading, humiliating or offensive environment for C. The ET was also entitled to find that with foresight and preparation the suspension could have been avoided. The EAT also held that ’’It is not, and cannot possibly be, the law that an employer is required peremptorily to suspend an employee, disabled or not disabled, simply because a risk assessment shows that some part of the work creates a moderate risk for them.”

Comment

This is an unusual case, perhaps in the result, more than the facts. The delicate line between satisfying one’s health and safety obligations and complying with the equalities legislation is sometimes tricky to identify. This case will be useful for those considering suspending anyone as a result of a risk assessment. It is a reminder that the employer will need to think around the problems highlighted in any risk assessment and not merely implement the results in a knee jerk fashion.